The Good Fight

JUST A FEW days before Christmas in an empty courtroom 16 floors above downtown, Hennepin County Public Defender Michelle Monteiro waits patiently as she watches her colleagues Angela Bailey and Renee Bergeron attempt to win a war by losing a battle. This particular front is Minneapolis anti-trespass ordinance 385.380, which the attorneys want District Court Judge Peter Albrecht to declare unconstitutional and discriminatory.

The ordinance was introduced six years ago by Ward 5 City Council member Jackie Cherryhomes, herself then new to the Council, and then-veteran Ward 2 Council representative Joan Campbell. Public perception was that there were a growing number of individuals from other states coming to Minneapolis to stand on street corners to sell drugs. That put anti-loitering policy near the forefront of city lawmakers' agenda. There was already a similarly worded state law, but city lawyers argued that it was too hard for property owners to prosecute repeat trespassers.

The city responded to complaints from owners of rental properties by adding a subsection to the state anti-trespassing law. The clause, the one Bailey, Bergeron, and Monteiro say is unconstitutional, allows a property owner to tell someone to get off their land for up to 90 days. If the person doesn't have what lawyers call "claim of right"--that is, any legal basis for being there--they can't come back. If they do come back before the 90 days are up they can be arrested for trespassing, a misdemeanor which carries jail time.

Monteiro, Bailey, and Bergeron believe that the ordinance is being used to target black males. Because its wording is vague and its application almost strictly arbitrary, they say potentially anyone can be legally barred from visiting loved ones or, in the case of one of their clients, barred from whole neighborhoods. More troublesome, they say Hennepin County defenders have represented a growing number of mostly black clients arrested on trespassing charges within the last five years. "The city almost always opts to continue prosecuting these cases. It's costing taxpayers money. They have to pay for the prosecutors, the defense, the jury, the judge, court reporters... It doesn't make any sense," says Monteiro. "On its face, the ordinance is not discriminatory, but it's being used by the Minneapolis police and landowners and it seems to be targeting young black males."

The defenders know there are only two ways to get the ordinance changed: one is by lobbying City Council members--who, in this case, aren't likely to budge. The other is by losing the case of someone prosecuted under the law in question at the trial-court level and taking the fight to the appellate court, the only judicial body with the power to order laws stricken from the books. This is Bailey's second appearance before Judge Albrecht. She's defending a man arrested by Minneapolis police for allegedly trespassing at a public housing complex.

Albrecht already threw out one argument against the ordinance in the man's previous appearance. This time, armed with a lengthy memorandum that attacks the law on various levels, Bailey is hoping to get Albrecht to overturn his previous verdict against the man. She's flanked by Bergeron, who presents arguments to support Bailey's assertion that not only is the Minneapolis ordinance unclear, but wielded by certain individuals it would open the floodgates to unfair policing of Minneapolis residents.

Which is what Bailey argues happened to her client, Corey Holiday. Minneapolis Police Officer Donny Cheung arrested Holiday, who is black, after he was seen standing in front of a no-trespassing sign at the Northside Rowhouse Projects in Minneapolis. When Holiday saw the officer, the officer testified, he ran. The officer gave chase and arrested Holiday for criminal trespassing. But four days after Holiday agreed in writing not to go back to the residence in question for 90 days, Holiday was again "detained" by Cheung, who this time questioned him about an alleged gang affiliation.

Bailey says the second time Holiday was arrested had nothing to do with trespassing, and everything to do with legal harassment. She argues that cops use the ordinance to search, detain and even arrest individuals who haven't necessarily been charged with anything, in much the same way they used to use probable cause. "This incident clearly exemplifies how police officers can use the written notice to depart to harass innocent persons," Bailey argued in her memo to the judge. "This type of arbitrary and oppressive manipulation of the trespass ordinance violates the Equal Protection Clause."

Albrecht, however, declined to tackle Bailey's argument, instead summarily dismissing it and, after explaining that the decision hinged on the length of time a person may stand in front of a no-trespassing sign before they are actually trespassing, found her client guilty. The lawyers expected this. The loss clearly upsets Bailey, but she seems more angered at the possibility that Albrecht may not have even considered the memo she submitted, the one that argues in favor of changing the ordinance altogether.

The same argument has been better received by other local judges, the attorneys note. Bailey's colleague, Monteiro, recently won a small victory when she got District Court Judge Roberta Levy to see things her way in the case of another young black man arrested for trespassing at another public housing complex. Monteiro persuaded Levy that because the second part of the ordinance--the part that was added only six years ago--is unclear to the average Joe, it's unconstitutional. Levy agreed with Monteiro and, because laws incomprehensible to the average citizen are automatically unconstitutional, found her client not guilty.

"If I can't make any sense of it and don't know how to draft instructions based on the language of this ordinance, then it seems inappropriate to hold the defendant accountable for this ordinance," Levy said during the November proceedings. "It's really a construction thing, and I'm hoping that the ordinance gets changed immediately or at least or perhaps that you [return to] charge people under the [state] statute."

Robin Magee, a Hamline Law School professor and president of the Minnesota Chapter of the National Conference of Black Lawyers, agrees with Levy but goes one step further. She says the law should be stricken from the books altogether, arguing that it's also unconstitutional because it negates the rights of tenants to invite whomever they want to their homes. "[The ordinance is] unconstitutional because it denies tenants property rights without due process of law and it denies them their contract rights as represented by the lease without due process of law," argues Magee. "I think it's important to just state that the tenants have right to possession, and this ordinance as applied allows the landlord the right to deny them that right to possession without any kind of process."

Landlords have rights, too, Magee concedes, but there are already better avenues of recourse for handling authentic trespassers. "If landlords have a need to have some people removed from their property then they should do like everybody else has to do and that is seek a restraining order," she says.

Meanwhile, Monteiro is hoping the rest of the charges against her client will be thrown out based on Judge Levy's findings. She was scheduled to go back into court this week but says city attorneys requested more time to prepare their case. Bailey and Bergeron have already filed an appeal to Holiday's conviction, which they expect will be heard sometime in the near future. But with city attorneys having a three-month window to file their own briefs, it may be close to spring before lines are drawn and the battle is once again engaged.